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Court of AppealPartially AllowedCivil Application No. 148 of 2006· [2007] KECA 386 (KLR)

Khan Mohammed Salim T/A Khan & Associates Advocates v National Industrial Credit Bank & 3 Others

Court of Appeal of Kenya
21 March 2007
ROR. S. C. OmoloSBS. E. O. BosireWDW. S. Deverell
327 words in judgment
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The bottom line

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The Court of Appeal struck out an appeal because its documents were served late without the court's permission, and the defaulting side paid all costs.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Kisumu (Omolo, Bosire and Deverell, JJA) delivered on 21st March 2007 on an application by Khan Mohammed Salim t/a Khan & Associates Advocates to strike out the respondents' appeal (arising from a ruling of the High Court at Kisumu, Tanui J, dated 14th October 2002 in H.C.C.C. No. 89 of 2000). Counsel for the respondent conceded that the record of appeal, lodged on 27th April 2006, was served out of time on 5th May 2006, and sought leave to apply for an extension of time. The court refused that indulgence, noting that the motion had been served on the respondent nearly a year earlier and that there could be no basis for acceding to the request. Because the record had been served out of time without leave of the Court, the respondent had no valid answer to prayer (c) of the motion dated 12th May 2006. The court declined to determine the distinct question of the validity of the order raised in prayer (a), holding it unnecessary in view of its conclusion on prayer (c). The motion was allowed, the appeal was struck out, and costs of both the appeal and the motion were awarded to the applicant. The judgment is a single ruling of the full bench with no separate opinions and cites no authorities.

Key legal issues

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01

Consequence of service of a record of appeal out of time without leave

Holding

Service of the record of appeal out of time without leave of the Court leaves the respondent with no valid answer to a strike-out application, and the appeal is struck out with costs to the applicant.

Reasoning

Counsel for the respondent conceded that the record of appeal was served out of time and sought an opportunity to apply for extension of time. The court noted that the present motion had itself been served nearly a year earlier, so there was no basis for granting the indulgence. Since service was out of time and without leave, prayer (c) had to succeed. The court declined to determine the separate question of the validity of the order raised in prayer (a), as it had become unnecessary in view of the outcome on prayer (c).

p. 1

Legal principles established

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  • A record of appeal must be served within the prescribed time or with leave of the Court; service out of time without leave affords no valid answer to an application to strike out the appeal

Court orders

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  1. 1.Civil Appeal No. 96 of 2006 struck out
  2. 2.Costs of the appeal awarded to the applicant
  3. 3.Costs of the motion awarded to the applicant
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 89 of 2000
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over applications arising from intended/proposed appeals (the application to strike out a civil appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Khan Mohammed Salim T/A Khan & Associates Advocates v National Industrial Credit Bank & 3 Others", Case Analysis (2007). Civil Application No. 148 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/386/eng@2007-03-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.